AJ Park Law Consultant Ken Moon discusses developments in copyright law with reference to recent case law and the current review of the Copyright Act 1994. Copyright protects only particular expressions of an idea and not the idea itself, which is an international copyright concept, he writes.
The Copyright Act 1994 – with last major amendments made in 2008 – is finally up for review. The Review by the Ministry of Business, Innovation and Employment (MBIE) will now get underway with their Issues paper being released as this article was concluded.
Apart from legislative issues there has been a recent Court of Appeal decision that is clearly more controversial than the November decision of the Court of Justice of the European Unionwhich held that the taste of cheese cannot be protected by copyright.
Copyright Review misconceptions – Copyright does not protect ideas
Pre-review commentaries have asserted that existing copyright law stifles innovation. Innovation is defined by economists to mean ‘the application of new ideas’ to products and processes ‘that lead to increased value.’ But copyright does not protect ideas!
Copyright protects only particular expressions of an idea and not the idea itself. This is an international copyright concept. For example, Article 9(2) of TRIPS states ‘Copyright protection shall extend to expressions and not to ideas …’. This concept has been adopted and applied by New Zealand courts. For example, in Karum v Fisher & Paykel Finance  NZCA 389, a software case, the Court of Appeal cited TRIPS and said, ‘It is the expression of an idea, rather than the idea itself, that copyright protects’.
Using an idea conceived by somebody else, either as an inspiration or even as an important component in a new combination of ideas, is not an infringement of copyright under the 1994 Act, although incorporating the TRIPS wording in the Act would make this abundantly clear.
New Zealand does not have a good history in adopting international copyright treaties. For example, it has not fully implemented the 1961 Rome Convention for sound recordings, broadcasts and performers. Nor some of the provisions of the 1996 WIPO Performances and Phonograms Treaty (WPPT). This has disadvantaged singers and musicians – the ‘performers’. The WPPT, improving on the Rome Convention, provided new rights for performers. WPPT provides that performers (as well as ‘producers of phonograms’) shall have the right to receive remuneration for the broadcasting or communication of their recordings to the public.
Updating the Act to include the currently omitted WPPT provisions for the benefit of performers should be an issue considered in the upcoming review. And our amendments must provide performers with equitable remuneration for recordings ‘communicated to the public’ by streaming, unlike the UK, where streaming was bizarrely excluded.
Kim Dotcom case
Most internet copyright cases overseas these days are centred on streaming, but we still have a hot download case here. The US Government has since 2012 been seeking the extradition of the founder of Megaupload, Kim Dotcom, based on charges of criminal copyright infringement in the US. Megaupload provided a website database to facilitate the storage and distribution of infringing digital copies of movies – often ripped from DVDs. Each uploader would receive a link which they could ‘share’ via third party websites.
So-called ‘double criminality’ is required for extradition. That is, that there must be a New Zealand copyright offence corresponding to the alleged US offence.
The only potentially relevant criminal offence provisions (s.131) are: ‘Every person commits an offence … who … (d) in the course of business, (iii) distributes … an object that is, and the person knows is, an infringing copy of a copyright work.’
The Court of Appeal in July ( NZCA 233) decided the word ‘object’ was not limited to physical tangible copies, but also extended to digital files and thus covered the infringing copies of movies which were stored for access in Megaupload’s websites. Double criminality being established, the extradition process could proceed.
Many copyright practitioners, including the current author, had interpreted ‘object’ in s.131 (and elsewhere) according to the Oxford English Dictionary: ‘a material thing that can be seen and touched’. That is, a tangible item, not an intangible such as a digital file which can be transferred over the internet. As Ronald Young J said in Erris Promotions v Commissioner of Inland Revenue) ( 1 NZLR 811 one must not confuse the message with the medium.
AJ Park Law Consultant Ken Moon specialises in information technology, copyright, and trade secret law. Ken joined AJ Park in 1971 and was a partner until he retired at the end of 2006. Ken is now a consultant in the Auckland office. Ken specialises in information technology, copyright, and trade secret law. Ken developed a practice in computer law in 1978 and in 1989 was counsel for the successful plaintiff in IBM v Computer Imports, New Zealand’s first software copyright case to go to trial. He was also counsel for Hughes Aircraft Company in the 1994 patent office hearing which resulted in the first pure software patents to be granted in New Zealand.
In addition to New Zealand litigation, Ken has advised on and managed litigation for New Zealand clients in the United States of America, Germany and the United Kingdom in relation to: technology licensing disputes, patent infringement, software trade secrets. Ken has written a number of papers on the legal nature of software, copyright, software copyright and intellectual property law and he is a co-author of the book Copyright & Design. Ken is a former co-chairman of the technology and e-commerce committee of the International Bar Association. Ken’s Qualifications: BE (Elec), University of Auckland (1970); LLB (Hons), Victoria University of Wellington (1978); Admitted as a Barrister & Solicitor of the High Court of New Zealand. Contact Ken at firstname.lastname@example.org or connect via LinkedIn.